United States v. Michael Edward Todd , 486 F. App'x 88 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15482
Non-Argument Calendar
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D.C. Docket No. 5:10-cr-00058-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL EDWARD TODD
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 7, 2012)
Before BARKETT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Michael Edward Todd appeals his sentence of forty-six months
imprisonment, which the district court imposed following a guilty plea.1 He
argues that the sentence should be set aside because (1) the government breached
the plea agreement by seeking the denial of a reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1; (2) the district court erred in denying him
that reduction; and (3) the sentence is substantively unreasonable.
I.
Under the plea agreement in this case, the government expressly “agree[d]
to recommend that [Todd] receive a three level reduction in offense level for
acceptance of responsibility under U.S.S.G. § 3E1.1.” This obligation was subject
to only one exception. Specifically, the parties agreed that the government could
seek the denial of the reduction for acceptance of responsibility
should the defendant seek to withdraw the guilty plea once it is entered,
or should it be determined that the defendant has either (i) engaged in
conduct, unknown to the government at the time of the signing of this
Agreement, that constitutes obstruction of justice or (ii) engaged in
additional criminal conduct after signing this Agreement.
1
Todd pleaded guilty to one count of conspiracy to violate the Arms Export Control Act, 22
U.S.C. § 2778, and some of its accompanying regulations, 22 C.F.R. §§ 123.1 and 127.1, as well as
the International Emergency Economic Powers Act, 50 U.S.C. § 1705, and some of its implementing
regulations, 31 C.F.R. §§ 560.203 and 560.204, all in violation of 18 U.S.C. § 371.
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The parties stipulated that, with the reduction for acceptance of responsibility, the
guideline range for Todd would be forty-six months to fifty-seven months
imprisonment. The government separately agreed to file a motion for a departure
under U.S.S.G. § 5K1.1 if, “in the government’s sole opinion, the defendant
renders substantial assistance.” The parties signed the agreement on May 9, 2011.
The probation officer prepared a presentence investigation report (PSR),
which recommended that Todd be denied a reduction for acceptance of
responsibility. The probation officer based this recommendation on Todd’s drug
use and his failure to attend a drug treatment program. Todd filed an objection to
the PSR. He asserted that his problems with drugs was a longstanding one, that he
had accepted responsibility for the drug use, and that his guideline range should be
the one contemplated by the plea agreement.
The government filed a response to Todd’s objection, asserting that the
denial of the reduction would be appropriate. The government emphasized that
Todd’s behavior “over the four month period from when he was first arraigned
demonstrates his denial of acceptance of responsibility.” The last events that the
government cited were a positive drug test in April 2011, as well as Todd’s failure
to attend a substance abuse program that month. The government also filed a
U.S.S.G. § 5K1.1 motion, but, in a separate sentencing memorandum, it again
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stated that the district court should deny a reduction for acceptance of
responsibility.
At sentencing, the parties addressed this specific issue. Todd told the
district court:
What I think is important to note here in this particular case is that the
government, after these [drug] issues came up, . . . the government then
proffered to him a plea agreement. That plea agreement basically
promised him acceptance of responsibility, that they would recommend
not only the two levels, but the third level . . . . So the government was
well aware that these issues had come up and in their plea agreement
still maintained and set forth a guideline range which essentially resulted
in a sentence at that time of 46 to 57 months.
Todd then went on to argue that he should be granted a reduction for acceptance of
responsibility. In response, the government said: “We certainly stand by our plea
agreement and we certainly contemplated the three points of acceptance based on
the merits of the case and his coming forward.” But it went on to argue that “the
situation of how [Todd] conducts himself while he is permitted to be out on bond”
was a different issue, and it warranted the denial of acceptance of responsibility.
The district court denied Todd’s objection and found that his guideline
range was sixty-three months to seventy-eight months imprisonment. Because of a
statutory maximum, however, that range became a guideline sentence of sixty
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months. The court then granted the U.S.S.G. § 5K1.1 motion and sentenced Todd
to forty-six months imprisonment.
II.
As a threshold matter, Todd acknowledges that his plea agreement contains
an appeal waiver, but he argues that the waiver is not enforceable because the
district court did not explain that provision to him at the change-of-plea hearing, in
violation of Federal Rule of Criminal Procedure 11(b)(1)(N). We need not
consider this issue because the government has not filed a motion to dismiss this
appeal or otherwise invoked the waiver. Instead, the government has asked us to
consider this appeal on its merits. We therefore leave aside the question of
whether the appeal waiver is enforceable and turn to the merits of Todd’s appeal.
See United States v. Valnor, 451 F.3d 744, 745 n.1 (11th Cir. 2006).
III.
Todd argues that the government breached the plea agreement by seeking
the denial of a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
He asserts that this claim should be reviewed de novo because he brought it to the
attention of the district court. Todd states that the government breached the
“plainly stated language” in the plea agreement, and as a remedy, he seeks the
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specific performance of the obligation and a re-sentencing before a different
district judge.
In response, the government concedes that it breached the plea agreement.
The government acknowledges that its response to Todd’s objection to the PSR
“was directly contrary to [its] promise.” The government also recognizes that its
sentencing memorandum “asserted a position contrary to its agreement” with
Todd. The government notes that “nowhere does the record show that [it]
affirmatively recommended a three-level reduction for acceptance of
responsibility.”
The government, however, resists Todd’s request for a re-sentencing on the
ground that he did not present this issue to the district court. The government
argues that Todd’s claim is therefore subject to plain error review, and that under
that standard, there is no reversible error. The government concedes that the
breach of the plea agreement was error and that this was plain, but it suggests that
the error did not affect Todd’s substantial rights. The government also maintains
that its decision to breach the plea agreement did not seriously affect the fairness,
the integrity, or the public reputation of the proceedings.
The government is correct to point out that, if a defendant fails to object to
the government’s breach of a plea agreement, then plain error review applies. We
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have long recognized this principle, see, e.g., United States v. Thayer, 204 F.3d
1352, 1356 (11th Cir. 2000), and the Supreme Court confirmed this rule in Puckett
v. United States, 556 U.S. 129, 133–34, 129 S. Ct. 1423, 1428 (2009). However,
we are persuaded that Todd sufficiently raised this issue in the district court such
that de novo review applies to his claim. See United States v. Copeland, 381 F.3d
1101, 1104 (11th Cir. 2004) (holding that a preserved claim regarding the breach
of a plea agreement is reviewed de novo).
According to the government, “the record fails to reveal any effort by Todd
. . . to raise with the district court the possibility that the Government might be
breaching the terms of the plea agreement.” We cannot agree. As set out above,
the record clearly demonstrates that at sentencing, Todd told the court that the
government had promised in the plea agreement to recommend a three-level
reduction, which would correspond to a guideline range of forty-six months to
fifty-seven months imprisonment. Todd also told the district court that the
government had promised to do so after the incidents that the government insisted
warranted the denial of a reduction for acceptance of responsibility.
The government attempts to downplay Todd’s comments by suggesting that
he “raised the plea agreement with the court, but not to argue that the Government
had failed to comply with it.” This argument strains credulity. Indeed, in response
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to Todd’s argument, the government felt compelled to assert to the district court:
“We certainly stand by our plea agreement.” It is obvious that at that juncture, the
government understood that Todd had argued to the district court that it had
breached the plea agreement. There was no other reason for the government to try
to reassure the district court that it was “stand[ing] by” its promise.2
We also observe that, after insisting that it was adhering to the plea
agreement, the government went on to justify to the district court its decision not
to recommend a three-level reduction for acceptance of responsibility. The
government claimed that its promise to make the recommendation was “based on
the merits of the case,” but that “the situation of how [Todd] conducts himself
while he is permitted to be out on bond” was a different issue. The government
thus attempted to argue that it was not breaching its promise by seeking the denial
of a reduction for acceptance of responsibility. The government now
concedes—belatedly—that this was error.
The government relies on Puckett to suggest that Todd did not raise the
issue of the breach, but in light of the record here, Puckett is clearly
2
The government characterizes Todd’s comment as one aimed at showing that “even the
Government agreed that a lower sentence was appropriate.” This is not persuasive. The record
clearly demonstrates that all of these remarks were made in response to the district court’s specific
question about the issue of acceptance of responsibility. The exchange between Todd and the
government did not take place in the portion of the sentencing hearing during which the parties
addressed what the sentence ultimately should be.
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distinguishable. In that case, the Supreme Court noted that “at no time during
[sentencing] did Puckett’s counsel object that the Government was violating its
obligations under the plea agreement by backing away from its request for the
reduction.” Puckett, 556 U.S. at 133, 129 S. Ct. at 1427. Here, by contrast, Todd
told the district court that the government had promised to recommend a three-
level reduction. And in response, the government felt compelled to assert that it
was “stand[ing] by” its promise. The factual scenario in Puckett is entirely
different than the one here.
In sum, the government’s suggestion that Todd did not argue to the district
court that it had breached the plea agreement rings hollow.3 The record shows that
Todd made that argument and that it was sufficiently clear and compelling that the
government felt the need to counter it. In light of all of this, we conclude that
Todd preserved the issue and that de novo review applies. See Copeland, 381
F.3d at 1104.
As set out above, the government concedes that it breached the plea
agreement, and thus, the only question that remains is one of remedy. See United
3
The government’s separate suggestion that Todd did not even preserve an objection to the
sentence imposed is also unpersuasive. After imposing the sentence, the court asked the parties: “are
there any objections to the sentence . . . other than those that we’ve already covered?” (Emphasis
added.) Todd’s response that he did not have any does not indicate that he did not object to the
sentence imposed.
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States v. Johnson, 132 F.3d 628, 631 (11th Cir. 1998). Our precedent recognizes
two types of remedy: 1) specific performance of the plea agreement; and 2)
withdrawal of the guilty plea. Id. Where specific performance is due, our practice
has been to remand the case for re-sentencing before a different district judge. See
id. Here, “[s]ince [Todd] does not desire to withdraw his guilty plea, and since his
request for specific performance is justified by his adherence to his side of the
bargain, we will honor his request.” United States v. Rewis, 969 F.2d 985, 989
(11th Cir. 1992). We therefore vacate his sentence and remand for re-sentencing
before a different district judge.4
VACATED AND REMANDED.
4
In light of this, we express no views on the other issues that Todd has raised on appeal.
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